taji bakari vs salma ally omary 2022 tzhc 14668 18 november 2022

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA MISC. CIVIL APPLICATION NO. 20 OF 2022 TAJI BAKARI........................................................................ APPLICANT VERSUS SALMA ALLY OMARY...................................................... RESPONDENT (Application from the Judgment of the High Court of Tanzania, Dodoma) Dated 30th of November, 2020 In Matrimonial Appeal No.3 of 2020 RULING 1st &18thNovember, 2022 MDEMU, J.: This is an application under the provisions of section 11(1) of the Appellate Jurisdiction Act, Cap. 141 R.E 2019. It is by way of chamber summons and is supported by the affidavit of the Applicant one Taji Bakari, affirmed on 9th of May, 2022 on the following prayers: 1. That, this honorable Court be pleased to grant order for extension of time to file notice of appeal to the Court of Appeal of Tanzania out of time in respect of the judgment of the High Court of Tanzania - Dodoma while presided by his i lordship G. M. Masaju, in Matrimonial Appeal Case No. 3 of 2020 dated 3Cfh day of November, 2020. 2. Costs of this application be provided for. 3. Any other order(s) this honorable Court may deem just and fit to grant. This application was heard on the 1st of November, 2022 in which the Applicant was represented by Mr. Godwin Ngongi, learned Advocate and Mr. Leonard Haule, learned Advocate had the service of the Respondent. In support of the application Mr. Ngongi after adopting the contents of the Applicant's affidavit briefly submitted that, the delay is a technical one as initially, the notice of appeal was in time but suffered the consequences of withdrawal of an appeal to the Court of Appeal. He added that, as the appeal to the Court of Appeal was not determined on merits, and since time to file the notice of appeal to appeal to the Court of Appeal to initiate the appeal technically has elapsed, then this application be granted. He cited the case of Juma Kivina vs. Abdi Kikwazi, Misc. Land Case Application No.99 of 2O17(unreported) in support of his assertion. 2 In reply, Mr. Leonard Haule resisted the application. Along with adoption of the contents of an affidavit in reply by the Respondent to be part of his submissions, the learned Advocate submitted that, the Applicant was represented by an advocate who is knowledgeable of relevant procedures and therefore, the withdraw of the appeal to the Court of Appeal by the Applicant meant want of interest to pursue the matter. In his view, since the Applicant was represented at the Court of Appeal, all what happened on the withdraw of appeal is taken as negligence of the advocate which is not a good ground as was stated in Athuman Hamad vs. John Mabula, Civil Application No.56 of 2001 (unreported). He concluded by citing the case of Said Ally Ismail vs. Director of Public Prosecutions, Criminal Application No.20 of 2015 (unreported) arguing that, ignorance of the law which again, as was to negligence of the advocate, it wont save as an excuse. Mr. Ngongi almost reiterated his submission in chief in his rejoinder submissions. From what parties submitted and also on the basis of contents of the affidavit and counter affidavit, one question to be resolved is whether this is a fit case to enlarge time basing on technical grounds. The legal position regarding technical delay was once pronounced in the case of Fortunatus 3 Masha vs. William Shija and Another [1997] T.L.R. 154 in the following version: A distinction has to be drawn between cases involving real or actual delays and those such as the present one which clearly only involve technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement of the ruling of the court striking out the first appeal. In these circumstances, an extension of time ought to be granted. In the depositions of the Applicant in paragraphs 8, 9, 10 and 11, the Applicants averment is that, Civil Appeal No.236 of 2021 was filed in time to the Court of Appeal but got withdrawn on 6th of May, 2022. Mr. Haule however objected on the basis that, it was negligence of the advocate which culminated to the irregularities in the appeal, the consequence of which was to withdraw. Whereas I agree with the position of the learned Counsel for Respondent on authorities and the legal position regarding negligence of an advocate, the principle will not apply in this case because negligence of the 4 \ advocate was not the basis on the dialogue compelled the Applicant to withdraw the appeal. At pages 1 and 2 of the order of the Court of Appeal in Taji Bakari vs. Salima Ally Omary, Civil Appeal No. 236 of 2021 (unreported) on this reads that: The court dialogued with the counsel for the Appellant and he prayed to withdraw the appeal, the prayer which was not objected by Mr. Haute, learned counsel. On our part we accede to the prayer and hereby mark the appeal withdrawn under rule 102(1) of the Tanzania Court of Appeal Rules, 2009, this appeal originating from a matrimonial cause, we order no costs. I therefore agree with Mr. Ngongi that this is a fit case to invoke the principle of technical delay. Accordingly, the application is hereby allowed. Time to file Notice of Appeal for appealing to the Court of Appeal is extended for thirty (30) days from the date of this ruling. Each party to bear own costs. It is so ordered. 5 Gerson J. Mdemu JUDGE 18/11/2022 DATED at DO MA this 18th day of November, 2022 GersonT. Mdemir JUDGE 18/11/2022 6